Posted
by Susan Farbstein

Back in 2009, when our Clinic published a book about the prosecution of apartheid-era crimes in South Africa, we knew that state prosecutors had brought shockingly few charges since the Truth and Reconciliation Commission (TRC) concluded its work—but we didn’t know why. Now, thanks to a recently-filed case in the Pretoria High Court, we’re starting to get an answer. And it isn’t pretty. The new case alleges that South Africa’s ruling ANC government sought to protect apartheid-era security forces from prosecution, in order to protect itself.

The case was filed by the family of Nokuthula Simelane, who was 23 years old in 1983 when, while acting as a courier for the armed wing of the ANC, she was abducted, tortured, and disappeared by the Security Branch of the former South African Police. Her remains were never found. Although the TRC granted amnesty to some of the perpetrators in Simelane’s case in 2001, it also recommended that the National Prosecuting Authority (NPA) investigate further with an eye towards prosecuting those not granted amnesty. No such investigation or prosecution occurred.

The lack of progress in Simelane’s case is representative of numerous others. Under the terms of the TRC, any perpetrator who did not apply for and receive amnesty could be prosecuted. In its final report, the TRC recommended that the state pursue a bold prosecution policy, and in 2003 referred approximately 300 cases to the NPA for investigation and potential prosecution (as well as an additional 500 missing persons cases). The prosecutions never materialized.

New court filings now allege that the South African state “put in place measures to manipulate, control or obstruct prosecutorial decisions dealing with political cases of the past.” In particular, supporting affidavits—from extremely important public figures including the former director of the NPA and the head of its Priority Crimes Litigation Unit (PCLU)—provide detailed accounts of high-level interference by ministers and senior government officials to block post-TRC prosecutions.

It appears that those efforts were grounded in fears that cases against security forces perpetrators would open the door to charges against ANC leaders and members as well. The result, as explained by Anton Ackermann, the former head of the PCLU, was that the NPA was “effectively stopped from pursuing the investigation and prosecution of the so-called political cases arising from South Africa’s past.”

On the day in 2004 when three policeman were to be arrested for the attempted murder of Frank Chikane, the former head of the South African Council of Churches, Ackermann received a call from an official in the Ministry of Justice stating that “a decision had been taken that the Chikane matter should be put on hold pending the development of guidelines to deal with the TRC cases.” After Ackermann responded that only Vusi Pikoli, the NPA’s director, could give such an instruction, he was told by Pikoli not to proceed. Ackermann concludes “that it can safely be assumed that [Pikoli] was instructed at a political level to suspend these cases.” Investigations and prosecutions of TRC cases were placed on hold until new guidelines could be formulated.

Once new guidelines regarding TRC cases were put into place at the end of 2005—guidelines authorizing use of the same amnesty criteria applied by the TRC while granting prosecutors wide latitude to decline to prosecute even when adequate evidence existed, and which were eventually struck down as unconstitutional—Ackermann again sought to proceed with cases previously identified for prosecution. He was prevented from doing so by a lack of investigative capacity and the unwillingness of an inter-departmental committee to meet and move the cases ahead. He was later relieved of his duties in relation to the TRC cases. Ackermann states, in his affidavit, that a political instruction came from above to remove him from these cases to thwart prosecutions. “It is no coincidence,” he asserts, “that there has not been a single further prosecution since I was relieved of my duties in this regard.”

Pikoli’s affidavit confirms that political interference effectively barred the investigation and prosecution of TRC cases, and characterizes the Chikane case as the “unraveling” of the NPA’s efforts. Pikoli describes a meeting called by the Acting Minister of Justice and Constitutional Development, and attended by multiple other ministers, at which “it became clear that there was a fear that cases like the Chikane matter could open up the door to prosecutions of ANC members.” He also details how “powerful elements within government structures were determined to impose their will on my prosecutorial decisions.” Like Ackermann, Pikoli was suspended from his duties as director of the NPA and believes that the decision to pursue prosecutions of apartheid-era perpetrators contributed to his suspension and eventual dismissal.

Other affidavits speak to the impact of the absence of prosecutions on South African society and the TRC’s legacy. Alex Boraine, the Vice Chair of the TRC, states that political inference with the NPA’s mandate and the resulting abandonment of TRC cases has seriously eroded the human rights culture established by South Africa’s constitution, violated the rights of apartheid-era victims to a remedy, and allowed perpetrators to escape justice. Dumisa Ntsebeza, the head of the TRC’s Investigation Unit, asserts that the failure to prosecute those who never applied for amnesty undermined those who did, and that a tardy justice in the form of limited reparations to survivors has compromised the dignity that the TRC sought to build.

Together, the affidavits offer compelling evidence of political interference by the government into the work of the NPA, which effectively blocked the investigation of cases recommended for prosecution by the TRC. Now that the truth has come out, it’s time for the NPA to get back to work, without additional political meddling. Justice, delayed far too long, must no longer be denied.